New Hate Speech Legislation in Canada
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In 2024, the Trudeau government introduced the Online Harms Act (Bill C-63) to combat hate in Canada. While the bill proposed positive steps to combat pornography for minors, the hate speech provisions were extremely concerning. The bill received widespread criticism on a variety of fronts. It never proceeded beyond 1st reading, and died when Justin Trudeau prorogued Parliament in January 2025.
The Liberals’ 2025 election platform, under the direction of the new leader Mark Carney, promised to combat hate against those who are attending places of worship, schools, and community centres. Fulfilling that promise is a key component of the government’s new Combatting Hate Act.
As noted by the Department of Justice, the bill tackles “rising antisemitism, Islamophobia, homophobia and transphobia,” and prohibits certain conduct that would impede access to worship and other institutions. It also creates a stand-alone hate crime, for which a person can be charged in any case where he committed a crime (e.g. theft or assault) that was considered to be motivated by hatred.
Although this legislation has removed some of the worst elements of previous bills, the proposed provisions related to hatred still have problems.
Bill C-9, Combatting Hate Act
Although the Criminal Code prohibits the wilful promotion of hatred and the public incitement of hatred, the term “hatred” is undefined. However, court precedent has established a fairly high bar for this offence.
Bill C-9 would define hatred in the Criminal Code as “the emotion that involves detestation or vilification and that is stronger than disdain or dislike.” The bill would also clarify that a statement is not inciting or promoting hatred “solely because it discredits, humiliates, hurts or offends.”
These statutory provisions seem designed to capture how the courts have interpreted the existing criminal prohibition against wilfully promoting hatred. However, one could add other qualifying phrases from relevant case law, such as that the emotion in question is “a most extreme emotion that belies reason; [that] implies that [members of an identifiable group] are to be despised, scorned, denied respect and made subject to ill-treatment on the basis of group affiliation.”
Any definition of “hatred” that is added to the Criminal Code itself will supersede the existing common law definition, which is more detailed and arguably sets a higher bar. Apart from codifying a definition of hatred, the Combatting Hate Act adds three new, substantive provisions: on hate symbols, on hate crimes, and on restricting access to religious or cultural places.
Hate Symbols
The Criminal Code currently prohibits wilfully promoting hatred “by making statements”, other than in private conversation, against an identifiable group. An identifiable group includes those distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability. But is a political symbol, without any words accompanying it, a statement against an identifiable group? Nobody has ever been charged with this offense simply for displaying a symbol.
If passed, Bill C-9 would prohibit wilfully promoting hatred against an identifiable group by displaying “hate symbols” in public places. The Nazi swastika is the only symbol directly mentioned in the bill, but the bill would also prohibit wilfully promoting hatred by displaying symbols associated with designated terrorist entities. Offenders could be subject to up to two years in prison. Spray-painting a swastika on the doors of a synagogue, for example, would likely violate this proposed prohibition.
Displaying such an image is not an offence per se. It is only an offence if displayed with the intent of promoting hatred against an identifiable group. For greater clarity, the bill explains that the offence would not capture the display of such symbols for a legitimate purpose related to journalism, religion, education, or art, or if the symbol is used to point out matters that may produce hatred in an effort to have them removed. So, a swastika would still be permitted in a history textbook, for instance.
The prohibition captures any symbol “principally associated with a terrorist group” or that “resembles [such] a symbol,” meaning there’s some room for ambiguity. Canada does have a designated list of terrorist groups, which would add some clarity. But even so, it may be difficult to determine whether such a symbol is being used to promote hatred against a particular group. Consider someone waving a Nazi symbol in a protest. Is it being waved to promote hatred? Or perhaps to protest an authoritarian regime? Or perhaps to mock certain people as Nazis or to label a certain political figure a Nazi? Or how about a Hamas symbol? Is it being used to criticize Israel, support Palestinians, or promote hatred against Jews? How can a judge know for sure? There may be a risk of political or ideological bias creeping into the enforcement of the law by police, prosecutors, and judges.
Hate Crime
Like its predecessor in 2024, Bill C-9 would add a new hate crime offence to the Criminal Code. The Criminal Code already makes hate (distinct from hatred in the offence of wilfully promoting hatred), bias, or prejudice a factor in sentencing. So, for example, if you assault someone and there is evidence that your assault was likely motivated by racial hate or prejudice, that “aggravating factor” will likely mean a harsher sentence for you. But the offence is still assault, and the maximum penalties for assault still apply.
But the new stand-alone hate crime offence would be added as a separate offence to any offence (e.g. assault) found to be motivated by hatred. So if someone commits assault, they may be subject to imprisonment up to five years. But if that assault is found to be motivated by hate, the offender could be charged with hate crime in addition to assault. The maximum possible penalty for the hate crime would be 10 years, in addition to the maximum of 5 years for the initial assault.
Access to Religious or Cultural Places
Currently, it is an offence to obstruct, interfere or interrupt “any person in the lawful use, enjoyment or operation of property.” This offence of mischief can apply broadly, but the Criminal Code also already clarifies that it applies to obstructing access to a building used for religious worship, or a building used by an identifiable group for various activities, events, or as a residence.
Bill C-9 would remove the mischief offence as it relates to religious property and other cultural institutions and would instead create an offence for intimidation and obstructing access to such places. It would prohibit engaging in conduct with the intent of provoking a state of fear in order to impede access to a building used for religious worship, or a building used by an identifiable group for activities, events, education, or as a residence, or a cemetery. Similarly, it would prohibit intentional obstruction or interference with lawful access to any of these places. Such activity would be punishable by up to ten years in prison. (A similar prohibition was enacted in 2021 in relation to access to health care).
No one is guilty of an offence for being at or near a building “for the purpose only of obtaining or communicating information.” There had been some talk about implementing so-called “bubble zones” around religious buildings or cultural or other institutions. Such bubble zones may have looked like bubble zones around abortion clinics that prohibit peaceful protest or sharing of information within so many meters of the facility. Thankfully, Bill C-9 does not go that far.
Analysis
We are grateful that the worst elements of the government’s previous attempts to regulate hate speech were excluded from Bill C-9. The previous version included harsher penalties for hate crime and hate speech (including up to life in prison for any hate crime), anticipatory hate crimes – where someone could be convicted because they will commit hate speech or a hate crime in the future – and incorporating hate speech into the Canadian Human Rights Act, which sets a low bar for conviction.
But there remain a few concerning elements, largely around wording that may be vague for law enforcement. Additionally, the bill would make it easier to prosecute hate speech offences. Currently, the Attorney General of Canada must consent to such charges being laid. But Bill C-9 would remove the requirement for consent and make it easier for police to lay charges.
While Bill C-9 defines hatred so as to exclude disdain, dislike, or offence, it still relies on understanding the motivation behind a person’s actions as well as the effect it has on the emotions of others. Hatred is a real sin. But government and law enforcement cannot discern the degree of hatred in one’s heart, though they can judge and punish the things they do.
That’s why existing prohibitions in the Criminal Code focus on prohibiting particular actions, not emotions or motivations. While Christians should condemn hateful thoughts, words, and gestures, the government cannot regulate the heart.
Overall, Canada already has sufficient criminal laws around protecting access to places of worship and other buildings. Frankly, the primary problem seems to be police and prosecutors’ hesitation to enforce existing laws. While Bill C-9 excludes some of the most concerning elements that have been attempted in hate speech legislation, various concerning aspects remain. Stay tuned for further actions items as this bill moves through the legislative process.
